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Elgar Korean Law series

Edited by Hyunah Yang

The contributors examine societal and historical conditions that are reflected in – or that were shaped by – the law, through a variety of lenses; including law and development, law and politics, colonialism and gender, past wrongdoings, public interest lawyering, and judicial reform. In dismantling the historical specificity of the way in which Korea studies are universally framed, the contributions provide novel views, theories and information about South Korean law and society.

Chapter 9: The constitutionalisation of the representative system in Korea

Monograph Chapter

Extract

This chapter aims to show and explain some characteristics and limits of constitutional politics in the Republic of Korea (hereinafter ‘Korea’ or ‘South Korea’). A constitutionalisation of politics has been taking place in Korea since her dramatic transition from military dictatorship toward democracy in 1987. Nonetheless, the factors that actually facilitated that constitutionalisation of politics have rarely been revealed, and this is the purpose of this chapter. The introduction will focus on the concept of constitutionalisation and its meaning in the context of Korean politics. Today, the concept of constitutionalisation frequently describes a worldwide phenomenon of judicialisation of politics, especially in the literature of law and political science (Hirschl 2004, 2006; Ginsberg 2003, etc.). It is true that, since 1987, Korea has been typical in its vivid national demonstration of the judicialisation of politics; for example, the Korean Constitutional Court functioned significantly in stopping many unconstitutional political regulations of the past and encouraging institutional reform efforts for the future. The judicial empowerment by the active Constitutional Court enabled institutional reform discourse in many areas of Korean society. The political representative system, where the political establishments had monopolised political power for more than half a century, was surely one of the most important areas where those reforms took place. Nonetheless, it is not sufficient to use the concept of constitutionalisation or judicialisation of politics to describe the changes in the Korean political arena. There is also a real need to know the origins and consequences of those changes.

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